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it. be could see in the King's courts for the exercise of such a right was a consequence of the protection offered him. This rule was fol lowed by Sir William Scott a hundred years later in the case of the Hoop* where be said:
In the law of almost every country the character of alien enemy carries with it a disability to sue or sustain, in the language of the civilians, a persona standi judicia. The pecnliar law of our own country applies this principle with great rigor. The same principle is received in our courts of the law of nations. Ther are so far British courts that no man can sue who is an enemr, unless under the particular circumstances that pro hac rice discharge him from the character of an enemy, such as the circumstances mentioned abores
The rigor of this ancient rule which rirtually treated enemy aliens as ez lege and without the right of access to the courts has recently been criticized as a relie of barbarous days when the lives and property of all enemies were forfeit to the rictor;'* nevertheless it left open a loophole by which the English courts have in fact been able to open their doors to enemy aliens while at the same time respecting the general principle of the old doetrine. In practice, whenever an enemy subject resident in England has been able to show that he was there with an express or implied license of the King he has been allowed to appear in the courts either as a plaintiff or a defendant. The onus
31 Ld. Raym. 282. Some question was raised by Mr. Justice Younger, in the case of Schaffenius . Goldberg (1915) as to the authenticity of the phrase quoted above "without being molested by the government," which does not appear in several reports of the case. The matter was discussed at some length by counsel.
41 C. Rob. 196, 201 (1799). The case law of England and the l'nited States is reveiwed by Huberich in his work on Trading with the Enemy, pp. 191 ff.
Mr. Justice Story, in his Notes on the Principles and Procedure of Prize Courts (p. 21), adopted the same principle.
Such is the opinion expressed by the London Solicitor's Journal and Teekly Reporter of January 23, 1915. See also the criticism by Dr. Sieveking, Inter. national Law Association Reports, 1913, p. 169, who remarks that "there is no earthly reason why a subject of one of the belligerent powers should not be allowed to appear in the courts of the other nation and obtain a judgment, provided execution, unless out of funds in the enemy's country, be stayed until the termination of the war. The idea of his being an alien enemy and therefore having no persona standi judicio is too old to be seriously considered."
of showing this has not been difficult, for enemy aliens who are allowed to remain in the country after the outbreak of the war have generally been assumed to be there by an implied license under the protection of the Crown. This follows as a logical consequence of registration, internment and other similar measures. It amounts to this, therefore, that under this rule practically the only enemy persons to whom the courts were closed during the late war were those resident in the enemy country or who, though resident in England, were not regarded as being under the protection of the Crown.?
Article 23(h) of the Hague Convention No. IV, of 1907.—Until 1907 there was no doubt that belligerents were free to close their courts to enemy subjects at will, that is to say, the question was one solely of municipal law; but it is not quite clear whether that liberty of action was not surrendered by the adoption of Article 23(h) of the Hague Convention of 1907 respecting the laws and customs of war on land. This provision declares that it is especially forbidden “de déclarer éteints, suspendus ou non-recevables en justice, les droits et actions des nationaux de la partie adverse.” The prohibition which it establishes was added at the suggestion of two German delegates, Herr Göppert and General von Gründell, the latter of whom in explaining its purpose in the committee said its object was not limited to protecting corporeal property from confiscation but that it had in view “the whole domain of obligations, by prohibiting all legislative measures which, in time of war, would place the subject of an enemy state in a position of being unable to enforce the execution of a contract by resort to the courts of the adverse party."8 In other words, its object was to prohibit belligerents from depriving enemy subjects by legislation or otherwise of the means of enforcing their legal rights
7 Compare Picciotto, "Alien Enemy Persons, Firms and Corporations in English Law," Yale Law Journal, 27:172 (1917). A classification of the holdings of the English courts in respect to the right of enemy aliens to sue may be found in the brief of the Attorney General in the case of Re Merten's Patents (1915), 112 L. T. R. 315. The decisions are grouped under three heads: (1) those upholding the right to sue; (2) those denying the right; and (3) those which deny the right to sue as plaintiffs but uphold the right to sue as defendants.
8 Deuxième Conférence International de la Paix, Actes et Documents, Tome III, p. 103.
through resort to the courts. It therefore overruled the doctrine of the English and American courts that contracts with alien enemies are generally suspended or terminated by the outbreak of war and that enemy subjects have no rights of action in the courts except under the peculiar circumstances mentioned by Sir William Scott and Judge Story referred to above.
English and American Interpretation of Article 23(h).- English and American authorities have, however, placed a different interpretation on the meaning of Article 23(h) and the matter has been the subject of much controversy. According to their view the purpose of the article in question was merely to prohibit commanding generals and their subordinates in the field from suspending or extinguishing the legal rights of the inhabitants and did not contemplate a restriction on the right of the state through its legislative, executive, or judicial organs to exclude generally enemy subjects from bringing actions in its courts.10 In favor of this view it is argued that the position of Article 23(h) clearly shows that it was intended merely as a limitation on the powers of military commanders in the actual theater of hostilities. It is a part of a chapter entitled “Means of injuring the enemy; sieges and bombardments," which is in turn a subdivision of a general heading entitled “hostilities," all the provisions of which relate to the conduct of operations by military commanders. This view is strengthened by the declaration contained in Article I, that “the high contracting parties will issue to their armed land forces, instructions which shall be in conformity with the regulations re
9 This interpretation is that adopted by the German Government in its official Weissbuch, Über die Ergebnisse der im Jahre 1907 in Haag Abgehalten Friedenskonferenz, p. 7.
10 This is the view expressed by General Geo. B. Davis in his Elements of International Law, p. 578; see also an article by him entitled “Amelioration of the Laws of War on Land,” American Journal of International Law, Vol. II, p. 70. See also Trotter, Effect of War on Contracts During War, supp. 1915, p. 20, who remarks that the provision in question does not affect the ancient rule of the common law, that an alien enemy, unless with special license or authorization of the Crown, has no right to sue in the King's courts during war. See also Higgins' Hague Peace Conferences, p. 235; Cobbett's Cases on International Law, Part II, pp. 85-86; Holland, Law Quarterly Review, Vol. 28, p. 94; Huberich, op. cit., p. 45; and Picciotto, Yale Law Journal, 27:170 (1917).
specting the laws and customs of war on land' annexed to the present convention.” The logical inference, therefore, is that Article 23(h) is one of the “regulations respecting the laws and customs of war on land,''11 and not a general rule of conduct for states in respect to the administration of justice.
The view of the British Government regarding the meaning of the clause was expressed by the Foreign Office in a letter of March 27, 1911, to Professor Oppenheim in response to an inquiry addressed by him on February 23 to the British Secretary of State for Foreign Affairs. Professor Oppenheim in his letter of inquiry called the attention of Sir Edward Grey to the fact that the interpretation which had been placed upon the clause by continental writers generally and even by some English and American authorities, a number of whom he cited, was in conflict with the old English rule. It was unfortunate, he added, that neither the English blue book relative to the Second Hague Conferencela nor the official procés verbale of the conference indicated what was the purpose or intent of the provision. In its reply the Foreign Office, arguing mainly from the position which the article occupies in the text of the Convention, rejected the Continental interpretation and maintained that the article , had no effect on the old English rule regarding the incapacity of enemy aliens to sue. 13
11 Professor Holland in commenting on this article (Law Quarterly Review, Vol. 28, pp. 94 ff.), remarks that "if this clause is intended only for the guidance of an invading commander it needs careful redrafting; if, as would rather appear, it is of general application, besides being quite out of place where it stands, it is so revolutionary of the doctrine which denies to an enemy any persona standi in judicio that although it is included in the ratification of the Convention by the United States on March 10, 1908, and the signature of the same on June 29, 1908, by Great Britain, it can hardly, till its policy has been seriously discussed, be treated as rule of international law.” In his Laws of War on Land, p. 5, Professor Holland cites this paragraph as an instance of the inconvenience of intermixing rules relating to the duties of belligerent Governments at home with those intended to serve for the guidance of armies in the field.
12 Parliamentary Papers, Misc. No. 4, 1907.
13 Professor Oppenheim's letter and the reply of the British Foreign Office are printed in French in an article by M. Politis in the Revue Gén, de Droit Int. Pub., 1911, pp. 250 ff. See also Trotter, Effect of War on Contracts During War, supp., p. 14, and Spaight, War Rights on Land, pp. 140-141. The Foreign Office,
Views of Continental Publicists.—Continental writers, however, almost without exception hold the contrary view. Among those who have so expressed themselves or who apparently assume that the German interpretation referred to above is the correct one may be mentioned Bonfils, 14 Ullman,15 Wehberg, 16 de Visscher, 17 Sieveking, 18 Politis, 19 Despagnet,20 Kohler, 21 Strupp,22 Noldeke,23 and Théry,24 Dr. Sieveking, a German jurist, discussing the force of Article 23(h) before the International Law Association at its meeting in 1913, said:
I think there can be no doubt whatever as to the meaning of this Article: an alien enemy shall henceforth have a persona in judicio standi in the courts of the other belligerent for all his claims, whether they originated before or during the war; his claim shall henceforth no longer be dismissed or suspended on account of his being an alien enemy; he shall be entitled to a judgment on the merits of the case, and this judgment shall be immediately enforceable. It has been argued that this article merely conveys instructions to officers commanding in the field and in no way touches the dealings of the Home Government and the law at home. If this were so it would mean that the German delegates proposed an article devoid of any meaning. An article might just as well have been inserted saying that officers in the field are not allowed to contract alliances or to declare
in its reply to Professor Oppenheim's inquiry, stated that the English rule works automatically at the outbreak of war; "no declaration," it said, "is needed in order to make commercial intercourse with alien enemies illegal and to withdraw from them the protection of the courts. The outbreak of war, ipso facto, without any proclamation, abolishes, suspends, and makes inadmissible the rights of the subjects of the hostile party to institute legal proceedings.”
14 Manuel de Droit Int. Pub., p. 651. 15 Völkerrecht, 2d ed., p. 474.
16 Capture in War on Land and Sea, p. 8; also Rev. de Droit Int. et de Lég. Comp. 1913, p. 197.
17 Du caractère ennemie et de la condition des Personnes ennemies quant à l'exercise de leurs droits civils, Law Quarterly Review, July, 1915, pp. 289 ff.
18 International Law Association Reports, 1913, pp. 175-178.
19 L'Article 23 (h) du Réglement de la Haye, Rev. Gén. de Droit Int. Pub., vol. 18 (1914), pp. 249 ff.
20 Cours de Droit Int. Pub., p. 825.
23 Deutsche Juristen Zeitung, April 1, 1917, p. 374, French translation by M. Dreyfus, 44 Clunet, pp. 1354 ff.
24 Recevabilité des Sujets Ennemis à Ester en Justice en France, 44 Clunet, pp. 480 fr.